Premium Point Park Ass\u27n. v. Polar Bar, 306 N.Y. 507, 119 N.E. 2d 360 (1954)

Vaccaro, Anthony J.

English

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 4 Number 1 Article 56 10-1-1954 Property—Real Property—Restrictive Covenants Anthony J. Vaccaro Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Property Law and Real Estate Commons Recommended Citation Anthony J. Vaccaro, Property—Real Property—Restrictive Covenants, 4 Buff. L. Rev. 107 (1954). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol4/iss1/56 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE COURT OF APPEALS, 1953 TERMto prove that an easement appurtenant to the mill lot had in factbeen contemplated. In that event the amount of water availableto defendant would be controlled by the quantity which the grantorhad used for the mill, the present use of water being irrelevant.11. The dissenters, citing Flora v. Carbean2 and Matter of Find-lay1 3 further maintained that since both parties had agreed in thelower courts that the right in question was an easement appir-tenant to the mill lot, the Court of Appeals had no right to aban-don that theory which would have produced a different result.Restrictive CovenantsA restrictive covenant provided that land could not be usedfor:(1) A commercial garage, or automobile parking lot(2) A public garage or public automobile filling station.(5) Clubs, lodges, and social buildings in which dancing orbowling may be an incidental use; . . .A development association attempted to enjoin the owners ofa refreshment stand from using part of their land as parking areafor patrons.1 4The court felt that the meaning of the restriction was clearfrom the covenant itself. "Parking lot" considered in conjunc-tion with commercial garage indicated that the land could not beused for the business of storing automobiles for a stipulated price.If a public parking lot were intended to be prohibited, it wouldhave been so stated in the restriction on public garages. Thecourt also rejected the contention that incidental parking wasrestricted, because the covenant expressed clarity when incidentaluse of the land was prohibited as in clause number five, supra.The court did not rest solely on what appeared plain to them,but recognized that the spirit of our law favors the free and un-obstructed use of property, 5 and applied the rule that if a re-strictive covenant is capable of more than one interpretation, itwill be construed against the party attempting to extend it.'611. Comstock v. Johnson, 46 N.Y. 615 (1871) ; 3 FARNHAM, WATERS AND WATERRIGHTS 2286 (1904).12. 38 N.Y. 111 (1868).13. 253 N.Y. 1, 170 N.E. 471 (1930).14. Premium Point Park Ass'n. v. Polar Bar, 306 N.Y. 507, 119 N.E. 2d 360(1954). See Schoonmaker v. Hecksher, 171 App. Div. 148, 157 N.Y. Supp. 75 (1stDep't 1916), aff'd, 218 N. Y. 722, 113 N.E. 1066 (1916).16. Ibid; See Buffalo Academy of the Sacred Heart v. Boehm, 267 N.Y. 242,196 N.E. 42 (1935).107

Property—Real Property—Restrictive Covenants

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Property—Real Property—Restrictive Covenants

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